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Criminal Appeal No. 670 of 1977, decided on 6th April, 1980.

‑‑‑S.71‑‑Punishment, multiplicity of‑‑Accused convicted and sentenced on two counts under Ss. 307 & 326, P.P.C. for giving multiple injuries to victim of murderous assault‑‑Conviction on two counts, held, not legally permitted and accused liable only to conviction for graver offence under S.307, P.P.C. in circumstance‑‑Conviction' and sentence under S.326, P.P.C. set aside.‑‑[Sentence].

Syed Ashiq Hussain Rizvi for Appellant.

Khalid Ahmad for the State.

Date of hearing: 6th April, 1980.

Mr. Shaukat Ali, Magistrate Section 30, Lyallpur (Faisalabad), has convicted Bashir Ahmad appellant, aged 56 years, under section 307, P.P.C. and sentenced him to five years' rigorous imprisonment, and for an offence under section 326, P.P.C. sentenced him to three years' rigorous imprisonment in respect of having caused four injuries to Muhammad Anwar (P.W.3) in an occurrence which took place at 9 a.m. on 17‑4‑1973 near the Darbar of Mehr Bibi situated in the area of Police Station Chak Jhumra, District Faisalabad. Both the sentences have been directed to run consecutively. The appellant has impugned the order, dated 28‑7‑1977 through the present appeal.

2. The case of the prosecution is supported by Imdad Hussain (P.W.1), Ashiq Ali (P.W.2), Zahoor Mohy‑ud‑Din (P.W.4), brother of the injured witness Muhammad Anwar (P.W.3). According to these witnesses at about 9 a.m. on 27‑4‑1973, when the injured and the witnesses were smoking Huqqa under a mango tree near Darbar Mehr Bibi, they found Mst. Barkat Bibi alias Jogan (D.W.1) having altercation with Beshir Ahmad appellant. According to the prosecution, Bashir Ahmed appellant was proposing to Mst. Barkat Bibi alias Jogan to enter into marriage with him, while Mst. Barkat Bibi alias Jogan had taken offence to it and she was abusing the appellant. Muhammad Anwar (P.W.3) reprimanded Bashir Ahmad appellant over his conduct which resulted in turning the dispute between Bashir Ahmad appellant and Muhammad Anwar P.W. and on this Bashir Ahmad appellant inflicted four injuries with Chhuri on the person of Muhammad Anwar P.W. The incident was reported by Zdhoor Mohy‑ud‑Din (P.W.4) brother of Muhammad Anwar (P.W.3) to Shabbir Abbas A.‑S.I. (P.W.5) who recorded the F.I.R. (Exh. P.B.) at 12 noon the same day. According to the prosecution, the appellant was apprehended at the spot and handed over to the police while the injured was conveyed to the hospital.

3. Dr. Iqbal Ahmad Javed medically examined Muhammad Anwar (P.W.3) and found the following injuries on his person:‑

(1) A stab wound 1" x 1 x omentum protruding out of the wound and bleeding at two ruptured places in front of the left side of the middle of abdomen about 2" lateral to the umbilicus.

(2) An incised wound on the left lateral side of the middle portion of the abdomen 1" x 1‑3/4" through and through 5".

(3) An incised wound x 3/4" on the back of the left lumbar region quite near the midline 5" posterior to injury No.2.

(4) An incised wound 1" x muscle deep direction oblique on the front of the left side of the chest 2" lateral to the left nipple.

Injury No.1 was declared grievous and dangerous to life and injuries Nos. 2 to 4 were declared as simple in nature, all caused by a sharp‑edged weapon within the duration of two hours.

4. The appellant has not denied his participation in the incident. In the first instance he raised the plea that Muhammad Anwar had accidentally received the Chhuri blows in the scuffle, but in his answer to the last question he has taken as specific plea of self‑defence, as according to him, Nadir Hussain Shah Mutwalli with the help of his two sons Khadim Hussain Shah and Imdad Hussain Shah P.Ws. wanted to forcibly take the possession of the house in occupation of the appellant.

In view of the statement of the appellant the issue is very much clinched. The appellant is the sole person involved in the incident. It is a broad day occurrence. The question of substitution does not arise, nor has the appellant denied his participation in the incident. After examining the injuries it is difficult for me to accept that Muhammad Anwar P.W. would have received for sharp‑edged weapon injuries merely accidentally and as far as the plea of defence of person or property is concerned, there is no evidence or material on record in support of this plea. Mst. Barkat Bibi alias Jogan was given up by the prosecution as won over. She has appeared in defence. In cross‑examination she accepts that after the incident she has married the appellant. In this view of the matter, her evidence is not of much value and in any case her evidence does not disprove the prosecution case. She has only tried to shift the immediate cause of the incident from her involvement to the dispute of possession. Confronted with all the abovestated circumstances establishing the implication of the appellant and disproving his plea the learned counsel for the appellant has though it expedient to pray for the reduction in the sentence.

5. The learned trial Court has overlooked the provisions of section 307, P.P.C. and has ordered two convictions in respect of the injuries to Muhammad Anwar P.W. This is not legally permitted. The graver offence would include the minor offence and, therefore, the conviction under section 326, P.P.C. is set aside.

Since the case is fully established against the appellant his conviction under section 307, P.P.C. is maintained. However, I would take into consideration the provisions of section 382‑13, Cr.P.C. and give the appellant the benefit of a little more than six months detention during the pendency of the trial. The appellant was apprehended on 27‑4‑1973 and allowed bail on 23‑10‑1973. In this view of the matter, his sentence is reduced from five years to 4 (four and a half years) rigorous imprisonment.

6. The appeal is allowed in the above‑stated terms.

S. G. D. Order accordingly.

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